Petition for Writ of Certiorari — Jimmy Steele, Petitioner v. United States

Supreme Court briefOct 3, 2018

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IN THE SUPREME COURT

OF THE UNITED STATES OF AMERICA

JIMMY STEELE,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Petition for A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

JIMMY STEELE, PRO SE

Reg. No. 36989-177

FMC Fort Worth

P.O. Box 15330

Fort Worth, TX, 76119

QUESTION PRESENTED FOR REVIEW

In Slack v. McDaniel, 529 U.S. 473, 486 0 120 S.ct. 1595 (2000), this

Court said there are limited circumstances in which a numerically second §

2255 is not successive merely because it numerically follows a previously

-filed motion, Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842 (2007),

if it raises a claim that had not arisen at the time of the earlier

petition. In Leal v. Quarterman, 573 F.3d 214 0 222

24 (5th Cir. 2009),

the prisoner's second § 2255 motion was not "second or successive",

because the "situation falls within what the Fifth Circuit recognized as a

small subset of unavailable claims that must not be categorized as

successive".

The Question presented for review in this case is: (1) In denying

Steele's Second-in-time §2255 motion, did the lower court(s) err in there

finding that the district court lacks jurisdiction to hear Steele's claim,

in light of his argument that the claim he has asserted for challenging

his sentence did not exist at the time he filed any previous motion and

the § 2255(h)'s gatekeeping provision did not apply? (A) Are the

considerations the Panetti v. Quarterman, 551 U.S. 930 (2007), court

identified in support of its holding specifically limited to Ford type

claims? (2) Does Steele's claim of an intervening change in the law which

established new precedent's in the Fifth Circuit constitute an

"extraordinary or 'rare circumstance" under the equitable tolling analysis

and "new fact" that forms the basis of a challenge under § 2255? (3) Does

Steele's unconstitutional and illegal designation as a career offender

which resulted in an increase in his term of imprisonment that deprived

him of liberty without due process of law, constitute a fundamental defect

resulting in a miscarriage of justice? (4) Did the lower court(s) err by

denying Steele a "COA", when he raised a constitutional right to be

deprived of liberty as punishment for criminal conduct only to the extent

authorized by Congress, and a constitutional right to be treated on equal

terms as other similarly situated defendants in other cases,and jurists of

reason would have found it debatable whether he stated a valid claim of a

constitutional right?

INTERESTED PARTIES

Pursuant to Supreme Court Rule 14.1(b), Steele certifies that the

names of all parties to this proceeding appear in the caption of this

Petition for Writ of Certiorari.

I..-

TABLE OF CONTENTS

PAGES

QUESTION PRESENTED FOR REVIEW.....................................i

INTERESTEDPARTIES...................................... ..........ii

TABLE

TABLE OF AUTHORITIES......

TABLE OF APPENDICES .............. . ......... . ....... . ..............vj

PRIOR OPINIONS IN THIS CASE....... ................................l,2

CONTENTS....

........

...

...........

•ea••••*•••.•..........

STATEMENT

JURISDICTION...

...•

•..

•.......

•

•••

••..e

•

...

•..

...

STATUTORY,CONSTITUTIONAL. PROVISIONS AND STATUES

INVOLVED IN THIS REVIEW ........... S.............................. .23

STATEMENT

........4

STATEMENTOF FACTS......... .......................................5

REASONS FOR GRANTING THIS PETITION ......

THE

CASE.

.•.......

...•.•..

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....

.•.

•.

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1.In denying Steele's Second-in-time § 2255 motion, did the lower

court(s) err in there finding that the district court lacks jurisdiction to

hear Steele's claim, in light of his argument that the claim he has asserted

for challenging his sentence did not exist at the time he filed any previOus

motion and the § 2255(h)'s gatekeeping provision

did

not

apply?...

.............••*•

.....

.........................

(A)Are the considerations the Panetti v. Quarterman, 551 U.S. 930

(2007), court identified in support of its holding specifically limited to

.11

ord

type

claims?

...........

•

...

.............

......

. .

2.Does Steele's claim of an intervening change in the law which

established new precedent's in the Fifth Circuit constitute an

"extraordinary or rare circumstance" under the equitable. tolling analysis

and "new fact" that forms the basis of a challenge under

§ 2255? ........................

.13

•••........•ø...

........

3.Does Steele's unconstitutional and illegal designation as a career

offender which resulted in an increase in his term of imprisonment that

iii

TABLE OF CONTENTS

—

CONTINUED

PAGES

deprived him of liberty without due process of law, constitute a fundamental

defect resulting in a miscarriage of justice?............. .....

4.Did the lower court(s) err by denying Steele a "COA", when he raised

a constitutional right to be deprived of liberty as punishment for criminal

conduct only to the extent authorized by Congress, and a constitutional

right to be treated on equal term as other similarly situated defendants in

other cases, and jurists of reason would have found it debatable whether he

stated a valid claim of a constitutional right?. ..................19

CONCLUSION

CERTIFICATEOF SERVICE........................... .................23

............*..•*•S.I••e•**•S•••••••S•

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TABLE OF AUTHORITIES

1-JUDICIAL DECISIONS

PAGES

Custis v. United States,.............,

.........

......13

Daniels v. United States ............... . ..........................13

Davis v. United States, 417 U.S. 333, 346, 94 S.Ct.

2298 (1974)....... ........ .. ...... ................... ... ..... ... ..14,15

Erickson v. Pardus, 551U.S.89, 94(2007)........ .......

Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595 (1986), ....... —12

Haines v. Kerner, 404 U.S. 519, 520 (1972). o .* .........

Johnson v. United States, 544 U.S. 295,125 S.Ct.

1571 (2005)..••••..e....•...... ...................................13

Johnson v. Wynder, 408 P.Appx 616, 619 (3rd Cir. 2020) ............12

Leal v. Quarterman, 573 F.3d 214, 222-24 (5th Cir. 2009) .......... 11,12

Mathis v. United States, 136 S.Ct. 2243 (2016) ............... 6,9,lo,16;17,21

Miller-El, supra, at 396, 123 S.Ct. 1029 (2003)................ ..20

Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842 (2007)........9,11,j.2,20

S.E.C. v. AMX, Intern'l, Inc, 7 F.3d 71, 75 (5th Cir. 1993).......8

Slack v. McDaniel, 529 U.S. 473, 486, 120 S.Ct.

1595

Stewart v. United States, 646 F.3d 856 (11th Cir. 2011)...........12

United States v. Buenrostro, 638 F.3d 720, 725

(9th Cir. 2011)...............

United States v. Ford, 509 F.3d 714, 715 (5th Cir. 2007)..........6,10,16,1?

United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016)o ............ 17

United States v. Lopez, 577 F.3d 1053, 1064 (9th Cir. 2009) ....... 12

United States v. Tanksley, 848 F.3d 347, 352

(5th Cir. 2017)........ .........

.......6,10,14,17,21

•ø•.•........S..

.......

2.STATtJTES AND RULES

21 U.S.C. § 851.............

...................... . ..6........3,16,18

28 U.S.C. § 2253.......

....... ... .... ... .. ... ... .... .......... 2,19

..............2,5, 1,15

U.S.C.

2255....

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. •.S.•....•..*.

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28 U.S.C. § 2255(h) ............. ................,... ......

........ 4

AEDPA. . . . . . . . . . . . . . *# . . . . . . . . . . . . ........ . . . . . . . . . . . . . . . . . . . . . . . . .4,9,13,20

TEX.Health & Safety Code §481.112(a)........ ....... , .... .3,6,1O,14,16,17,20

U .S.S.G. § 4B1.(a) ........................

.. 3,5,6,9,10,15,16

Fifth Amendment to the Constitution..... ............ ... . . .. ........ 3,19

................

TABLE OF APPENDICES

Appendix A

The Order of the United States District Court for the

Northern District of Texas, denying Steele's Second-in-time § 2255 motion

and Certificate of Appealability dated: June 26, 2017

Appendix B

The Order of the United States Court of Appeals for the Fifth

Circuit, denying Steel's Application for Certificate of Appealability,

dated: March 6, 2018

Appendix C

The Order of the United States Court of Appeals for the Fifth

Circuit, denying Steele's Petition for Rehearing to the Panel and Enbanc,

dated: July 11,2018

Appendix D

Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA")

No.

IN THE SUPREME COURT

OF THE UNITED STATES OF AMERICA

JIMMY STEELE

Petitioner

Appellant,

UNITED STATES OF AMERICA

Respondent

Appellee.

On Petition for Writ of Certiorari to

the United States Court of Appeals for the Fifth Circuit

Appeal No.:17-10743

COMES NOW Petitioner

Appellant, Jimmy Steele ("Steele"), appearing

pro Se, respectfully petitions the Supreme Court of United States of

America, for a Writ of Certiorari to review the judgement of the United

States Court of Appeals for the Fifth Circuit, rendered and entered in

Case No.17-10743 in said court on March 6, 2018, Jimmy Steele v. United

States, USDC No. 4:17-CV-515, which affirmed the judgement and commitment

of the United States District Court for the Northern District of Texas,

Fort Worth Division, entered on June 26, 2017, and Petition for Rehearing

to the Panel and En Banc, that was denied on July 11, 2018.

OPINION BELOW

The judgement of the United States Court of Appeals for the Fifth

Circuit is found at Appendix B. Petition for Rehearing to the Panel and En

Banc was denied and the decision is found at Appendix C. The Judgement of

the United States District Court for the Northern District of Texas, Fort

Worth Division is found in Appendix A.

STATEMENT

OF JURISDICTION

The Fifth Circuit Court of Appeals decided this matter on July 11,

2018. The jurisdiction of this Court is invoked under Title 28 U.S.C. §

1254(1)(2018) .

STATUTORY

PROVISIONS

The following statutory provisions with this case:

28 U.S.C. § 2255 provides, in pertinent part:

(a) A prisoner in custody under sentence of a court established by

Act of Congress claiming the right to be released upon the ground that the

sentence was imposed in violation of the Constitution or laws of the

United States, that the court lacked jurisdiction to impose such .a

sentence, that the sentence exceeded the maximum authorized by law, or

that the sentence is otherwise subject to collateral attack. Section 2255

is an extra ordinary measure; an allegation of legal error that is neither

constitutional nor jurisdictional is not cognizable on collateral review

"unless the claimed error constituted a fundamental defect which

inherently results in a complete miscarriage of justice".

28 U.S.C. § 2253 provides, in pertinent part:

(.c)(2) A Certificate of Appealability (CoA) "may issue... only if the

applicant has made a substantial showing of the denial of a constitutional

right". If a petitioner seeks a COA to challenge the district court's

denial of the petitioner's constitutional claims on the merits," [t]he

petitioner must demonstrate that reasonable jurists would find the

district court's assessment of the constitutional claims debatable or

wrong "or" that the issues presented were adequate to deserve

encouragement to proceed further". when the district court denies a habeas

corpus petition on procedural grounds without considering the underlying

constitutional claim, aCOA will be granted if the petitioner 'shows, at

least, that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that

jurist of reason would find it debatable whether the district court was

correct in its procedural rulings.

CONSTITUTIONAL PROVISIONS AND STATUES INVOLVED

The following constitutional provisions and statues involved with

•this case:

The Constitution's Fifth Amendment provides, in pertinent, part:

their guarantees and prohibits the' government from depriving someone of

life, liberty or property without due process of law (i.e. certain legal

procedures), and their guarantees of equal protection of law, to fair

procedure and guarantee against fundamental unfairness.

U.S. SENTENCING GUIDELINES MANUAL § 431.1(a) provides, in pertinent

part: A defendant is a career offender if (1) the defendant was at least

eighteen years old at the time defendant committed the instant offense of

conviction; (2) the instant offense is a felony that is either a crime of

violence or a controlled substance offense; and (3) the defendant has at

least two prior felony convictions of either a crime of violence or a

controlled substance offense.

Tex. Health & Safety Code Ann. § 481.112(a) provides in pertinent

part: Except as authorized by this chapter, a person commits an offense if

the person knowingly manufactures, delivers, or possesses with intent to

deliver a controlled substance...

21 U.S.C. § 851 provides in pertinent part: That no drug trafficking

defendant can face an enhanced mandatory minimum unless certain

procedures, including the filing of a prior felony information by the

prosecutor, are followed. Unless the prosecutor files a timely prior

felony information pursuant to 21 U.S.C. § 851 listing the prior felony or

felonies to be relied upon, the enhanced mandatory minimums will not

apply. § 841 specifically, it provides that where a defendant was

previously convicted of a felony drug offense, the five year and ten-year

mandatory minimums are doubled. For a defendant with two or more prior

drug felonies, the ten-year mandatory minimum is increased to mandatory

life in prison.

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")

provides in pertinent part: see Appendix

U.S.C.

2255(h) provides in pertinent part: A second or

successive motion must be certified as provided in section 2244 by.a panel

of the appropriate court of appeals to containnewly discovered evidence that, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found the

movant guilty of the offense; or

a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court that was previously unavailable. 28

U.S.C. § 2255(h).

STATEMENT OF THE CASE

On December 24, 2008, Steele was sentenced to 360 months in prison

and an eight-year term of supervised release after a jury convicted him of

possessing with the intent to distribute more than 500 grams of cocaine,

possessing a firearm infurtherance of a drug-trafficking crime, and

possessing a firearm as a convicted felon, in violation of 21 U.S.C.

841(a)(1) and (b)(l)(B), and lB U.S.C. § 924(c) and 922(g)(1).

On November 23, 2009, the United States Court of Appeals for the

Fifth Circuit ("Fifth Circuit") issued an Order affirming Steele's

judgment and certiorari review was denied on May 24, 2010.

On April 11, 2011, Steele filed a Motion under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody

("2255")

On August 8, 2011, the Court issued an Order denying Steele's § 2255

motion.

On June 27, 2016, Steele filed, for Authorization to File A Successive

Application under 28 U.S.C. § 2255.

On June 29, 2016, the Court issued an Order dismissing Steele's

Successive §2255 motion.

On June 21, 2017, Steele filed a Second-in-Time § 2255 motion and the

United States District Court for the Northern District of Texas, Fort

Worth Division, the Court issued a Order dismissing Steele's Second-inTime § 2255 motion on June 26, 2017.

On August. 15, 2017, Steele filed an Application for Certificate of

Appealability to appeal the District Court's judgment to the Fifth Circuit

Court of Appeals, the Fifth Circuit issued a Order affirming Steele's

(COA) on March 6, 2018.

On March 19, 2018, Steele timely filed a Petition for Rehearing to

the Panel and En Banc, the Court issued a Order denying the petition, July

11, 2018.

Steele timely files this Writ of Certiorari.

STATEMENT OF THE FACTS

On December 24, 2008, Steele was sentenced to 360 months in prison

and an eight-year term of supervised release. On Count 1 & 3, based on the

PSR, Steele was held accountable for 1.397 kilograms of cocaine. Using the

November 1, 2007 sentencing Guidelines, Steel's Base Offense Level is 26,

pursuant to § 2D1.l(c)(7). However, Steele has at least two prior felony

convictions for controlled substance offense, therefore, classified Steele

as a career offender and he was subjected to an enhanced sentence under

the provisions of U.S.S.G. S 4B1.1.

Also, pursuant to the Penalty Enhancement, the statutory penalty

range for Count 1 is 10 years to Life and at least 8 years term of

supervised release.

On Count 2, the guideline sentence is the minimum term of

imprisonment required by statute, which is 60 months, pursuant to U.S.S.G.

§ 2k2.4(b).

Steele's total criminal history score is 12 which results in a

Criminal History Category V.

However, pursuant to U.S.S.G.

4B1.1(b), a career offender's

Criminal History Category in every case under this shall be category Vi.

On Count 1 & 3, based on a Criminal History Category of VI and a

Total Offense Level of 37, the Guideline Range of imprisonment is 360

months to Life. On Count 2, the sentence is the minimum term of

imprisonment required by statute.

Therefore, the guideline range became 60 months. Count .2 shall be

imposed to run consecutive to Count 1 & 3.

Steele objected to the PSR findings to the career offender

enhancement under U.S.S.G. § 4B1.1., all calculations affected thereby.

His objection was overruled and the PSR stated that the prior felony

convictions qualified as controlled substance offense, and they have been

held as such by the Fifth Circuit in United States V. Ford, 509 F.3d 714,

715 (5th Cir. 2007).

Now based on those judicial fact finding, Steele was sentence as a

4B1.1. and received a 360 months sentence.

career offender under

In light of the Supreme Court's new rule of statutory construction

establish in Mathis v. United States, 136 S.Ct. 2243 (2016) (the Supreme

Court set forth how a court determines whether a statute is divisible and

therefore whether, in employing the modified categorical approach,

documents pertaining to the prior conviction may be used to ascertain if

conviction comes within a federal definition of an offense or has the

elements of an enumerated offense.), the Fifth Circuit granted a motion

for panel rehearing in United States v. Tariksley, 848 F.3d 347, 352 (5th

Cir. 2017), to decide whether Ford still represents the law. The court in

Tanksléy held that Ford could not stand and a "conviction for possession

with intent to deliver a controlled substance under section 481.112(a) of

Texas Health and Safety code (Section 481.112(a)') could no longer qualify

for career offender enhancement purpose. Now based on the intervening

change in Fifth Circuit law, the new precedent's establish in Tanksley,

Steele filed a Second-in-time § 2255 motion, to challenge his

unconstitutional enhanced sentence under the career offender provision

4B1.1. The District Court dismissed Steel's § 2255 motion for lack of

jurisdiction in light of Steele's argument that the grounds he has

asserted for challenging his sentence did not exist at the time he filed

his previous motion to vacate.

Steele timely appealed requesting a COA from the Fifth Circuit Court

of Appeals. The Fifth Circuit denied his request. Steele should have had a

full and fair opportunity to raise his claim in his prior motion because

prior precedent's had absolutely foreclosed Steele's current argument and

the claim was unavailable to him. The record should be clear that Steele

preserved this issue at sentencing when he objected to the PSR finding as

to him being classified as a career offender.

Steele then filed a Petition for Panel Rehearing and En Banc in the

Fifth Circuit. That motion was denied without opinion.

Steele now seeks a Writ of Certiorari from this Court.

REASONS FOR GRANTING THIS PETITION

In Steele's Second-in-time § 2255 and his COA, he clearly sets out

the facts surrounding his claim that the basis for his claim, the

unconstitutionally enhanced sentence as a career offender did not exist

before his initial 28 U.S.C. § 2255 petition concluded and his numerically

second petition was not "second or successive" and the § 2255(h)'s

gatekeeping provision did not apply as the failure to seek the requisite

permission was not fatal to his claim and the district court had

jurisdiction to consider his claim. The lower court(s) failed to follow a

well established standard governing numerically second § 2255 petition,

and did not state with any specification any rules bound by the court(s)

or precedents that preclude its consideration of Steele's petition. The

360. months sentence imposed on Steele as a result of the improper career

offender enhancement, which is more than 15 years additional prison time,

Steele would have to serve because of the erroneous

career offender

enhancement is significant enough to warrant habeas review and constitute

a fundamental defect which inherently results in a complete miscarriage of

justice. A postconviction clarification in the law has rendered the

sentencing court's decision unlawful.

Steele's illegal designation as a career offender resulted in an

increase in his term of imprisonment that deprived him of liberty without

due process of law. Tanksley rendered the sentencing court's previous

decision affirming Steele's sentence "demonstrably wrong", and failing to

correct this fundamental defect would produce an unwarranted disparity

between him and similarly situated defendants in other cases, violating

his due process right's to equal protection of law. Steele's sentence is

based on conduct were "for an act the law does not make criminal". Steele,

should have an absolute right not to stand before the courts as a career

offender when the law does not impose that label on him and to do so,

amounts to complete deprivation of freedom by virtue of a longer-thandeserved prison sentence. The lower court(s) should have limited

themselves to the threshold question whether the merits were debatable. A

court may grant a COA even if it might ultimately conclude that the

underlying claims is rneritless, so long as the claim is debatable.

Therefore, the lower courts decision are in direct conflict with well

-established law, as to call for an exercise of this Court's supervisory

power.

DISCUSSION

Steele respectfully requests that this Court be mindful that he is

proceeding pro Se. Pro se pleadings are reviewed under a less stringent

standard than those drafted by attorneys and are entitled to a liberal

construction that includes all reasonable inferences which can be drawn

from them. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); flames v.

Kerner, 404 U.S. 519, 520 (1972) (explaining the lower standard for pro se

pleadings). Additionally, when the complaint is filed pro Se, a court must

observe its duty to construe the allegations liberally and more

permissively. S.E.C. v. MIX, Intern'l, Inc, 7 F.3d 71, 75 (5th Cir. 1993).

1. In denying Steele's Second-in-time § 2255 motion, did the lower

court(s) err in there finding that the district court lacks jurisdiction

to hear Steele's claim, in light of his argument that the claim he has

asserted for challenging his sentence did not exist at the time he filed

any previous motion and the

apply?

2255(h) Is gatekeeping provision did not

The Anti-terrorism and Effective Death Penalty Act's (AEDPA)

restrictions on second or successive petitions are meant to forestall

abuse of the writ of habeas corpus, by, for instance, barring successive

motions raising habeas claims that could have been raised in earlier

motions where there was no legitimate excuse for failure to do.:so. There

are limited circumstances in which a numerically second § 2255 petition

may not be "second or successive" under AEDPA. Slack V. McDaniel, 529 U.S.

473, 486, 120 S.Ct. 1595 (2000) (explaining that the phrase "second or

successive", as used in AEDPA, is a term of art); See Panetti v.

Quarterman, 551 U.S. 930, 943-44, 127 S.Ct. 2842 (2007) (The phrase

defining. It takes its full meaning

"second or successive" is not self

from our case law, including decisions predating the enactment of the

[AEDPA]").

Mindful of the "implications for habeas practice , the purpose of

including those applying the

AEDPA, and its prior habeas decisions

abuse-of-the-writ doctrine

this Court determined "that Congress did not

intend the provisions of AEDPA addressing "second or successive" petitions

to govern a filing in the unusual posture. Under that rule, to determine

whether an application is "second or successive", a court must look to the

substance of the claim the application raises and decide whether the

petitioner had a full and fair opportunity to raise the claim in the prior

application. Panetti, 551 U.S., at 947.

Steele assert's that at Sentencing he objected to the PSR findings as

to the career offender enhancement under U.S.S.G. § 4B1.1, and all

calculations affected therby. The sentencing court overruled Steele's

objection, finding that his two prior felony state convictions: (1)

Possession with intent to Deliver Controlled Substance of 4 grams or more,

but less than 200 grams: Cocaine, Case No. 0854047D, Tarrant County

Criminal District Court No. 2, Fort Worth, Tx; and (2) Possession with

Intent to Deliver Controlled Substance of 4 grams or more, but less than

200 grams: Cocaine, Case No. 0887952D, (same), qualified as a "controlled

substance offense" within the meaning of the U.S.S.G. § 4B1.1, and have been

held as such by the Fifth Circuit in United States v. Ford, 509 F.3d 714,

715 (5th dr. 2007) (the Court in Ford held that intent to deliver a

controlled substance under Section 481.112(a) of the Texas Health and Safety

Code ("Section 481.112(a)"), qualifies as a "controlled substance offense"

under the United States Sentencing Commission Guidelines Manual (the

"Guidelines").

At the conclusion of Steele's dire6€ appeal and initial § 2255 motion,

the claim he allege in his Second-in-time § 2255 motion was foreclosed by

Fifth Circuit controlling law in United States v. Ford, 509 F.3d 714 (5th

Cir. 2007), and any prior attempt to obtain judicial correction would have

been deemed frivolous or meritless with circuit precedent's against him and

stare decisis would make the court unwilling (in all likelihood) to listen

to him.

In light of this Court new rule of statutory construction established

in Mathis v. United States, 136 S.Ct. 2243 (2016) (the Court in Mathis set

forth how a court determines whether a statute is divisible and therefore

whether, in employing the modified categorical approach, documents

pertaining to the prior conviction may be used to ascertain if conviction

comes within a federal definition of an offense or has the elements of an

enumerated offense), the Fifth Circuit granted a motion for panel rehearing

in United States v. Tanksley, 848 F.3d 347, 352 (5th dir. 2017), to decide

whether Ford still represents the law. The Court in Tanksley held that Ford

could not stand and a "conviction for possession with intent to deliver a

controlled substance under Section 481.112(a) of the Texas Health and Safety

Code ("Section 481.112(a)"), could no longer qualify for career offender

enhancement purposes. Now based on the intervening change in Fifth Circuit

law, which establish that Steele's sentence is now for an act that the law

does not make criminal, only then did his Second-in-time § 2255 motion

become "ripe". A postconviction clarification in the law has rendered the

sentencing court's decision unlawful. It is now clear that Steele never

should have been classified as a career offender and never should have been

subjected to the enhanced punishment reserved for such repetitive and

violent offenders.

Therefore Steele's motion pursuant to

2255 is not successive

merely because it follows a numerically previously filed motion. See

Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842 (2007), Id. at 86265, if it raises a claim that had not arisen at the time of the earlier

petition; see also Leal V. Quarterman, 573 F.3d 214, 222-24 (5th Ci:r.

2009) ("if however, the purported defect did not arise, or the claim did

not ripen, until after the conclusion of the previous petition, the later

petition based on that defect may be non-successive"). This Court should

find that Steele's proposed petition satisfies the requirements of a

second-in-time § 2255 motion, that this Court established in Panetti, and

his claim falls within what the Fifth Circuit has recognized as a small

subset of unavailable claims that must not be categorized as successive

and the district court had jurisdiction to hear his Second-in-time § 2255

motion. Steele now has a full and fair opportunity to raise his claim,

where as before extraordinary circumstances had prevented him from filing

his claim in a earlier motion because prior precedent's had absolutely

foreclosed Steele's current argument and the claim was unavailable to him.

This Court has made clear that a decision framed in general terms can be

deem to have "clearly established" a rule with respect to the variety of

specific scenarios that come within the general rule. Steele's

fact.

actions do not constitute an abuse of the writ, and his claim was not ripe

for disposition until now and he should not he barred under any form of

resjudicata because he has established a legitimate excuse for filing his

numerically second § 2255 motion. Therefore, Steele's sentence was

unconstitutionally enhanced under the career offender guidelines § 4B1.1

and his prior felony convictions under that statute do not qualify as a

controlled substance offense, requiring resentencing without the career

offender enhancement and if not, such results amounts to complete

deprivation of freedom by virtue of a longer

than

deserved prison

sentence.

A. Are the considerations the Panetti v. Quarterman, 551 U.S. 930

(2007), Court identified in support of its holding specifically limited to

Ford type claims?

In this case Steele present's an issue that did not become ripe

until after his initial § 2255 motion was decided. Panetti vo Quarterman,

551 U.S. 930, 127 S.Ct. 2842 (2007) (holding that a habeas petitioner's

previously unavailable claim that he was incompetent to be executed under

Ford v. wainwright, 477, U.S. 399, 106 s.Ct. 2595 (1986), was not barred

as second or successive petition); Leal Garcia v. Quarterman, 573 F.3d

214 (5th Cir. 2009) (holding that a petition for relief based on an

intervening Supreme Court decision was not second or successive). This

Court should note that the lower court(s) overlooked or misapprehended

points of law and facts presented by Steele, because the record should

clearly reflect that Steele sets out the facts surrounding his claim,

that the basis for his claim

the unconstitutionally enhanced sentence

as a career offender

did not exist before his initial § 2255 motion

concluded, and his numerically second petition was not "second or

successive", and the § 2255(h)'s gatekeeping provision did not apply as

the failure to seek the requisite permission is not fatal to his claim

when the district court had jurisdiction to consider his claim. The

intervening change in law constitutes a rare

and extraordinary

circumstance, which created a new fact supporting the claim, making

Steele's numerically second petition "ripe". Particularly when a

petitioner raises a claim that could not have been raised in a prior

habeas petition, courts have interpreted Panetti to permit that claim to

be raised in a subsequent petition. United States v. Buenrostro, 638 F.3d

7200, 725 (9th Cir. 2011) (per curiam) ("Panetti do[es] not apply only to

Ford claims. Prisoners may file second-in--time petitions based on events

that do not occur until a first petition is concluded".); Johnson v.

Wynder, 408 F.App'x 616, 619 (3rd Cir. 2010) ("We see no reason to avoid

applying Panetti in the context of other types of claims that ripen only

after an initial federal habeas petition has been filed".); United States

V. Lopez, 577 F.3d 1053, 1064 (9th dr. 2009) ("The considerations the

(Supreme] Court identified in support of its holding are not specifically

limited to Ford claims, and therefore must be considered in deciding

whether other types of claims that do not survive a literal reading of

PEDPA'S gatekéeping requirements may none the less be addressed on the

merits".); Stewart v. United States, 646 F.3d 856 (11th Cir. 2011)

("holding that the prisoner's second § 2255 motion was not "second or

successive" because the "situation falls within what the Fifth Circuit

recognized as a small subset of unavailable claims that must not he

Categorized as successive,, ).

Therefore

this Court should determine that Steele's second-intime § 2255 motion, satisfies the requirements established in Panetti

and must be considered in deciding whether other types of claims that

do not survive a literal reading of AEDPA'S gatekeeping requirements

may none the less.be addressed on the merits. In sum, it appears that

whether the AEDPA'S ban on successive petitions without prior

authorization may be lifted in any particular case is a fact

specific

inquiry. it is a close question and may be of first impression, but may

form the basis for enlarging the grounds for collateral attack to

include claims like Steele's.

(2) Does Steele's claim of an intervening change in the law, which

established new precedent's in the Fifth Circuit, constitute an

"extraordinary or rare circumstance" under the equitable tolling

analysis and "new fact" that forms the basis of a challenge under §

2255?

In Johnson v. United States, 544 U.S. 295, 125, S.Ct. 1571 (2005),

the Supreme iCourt held that the state court vacator of a predicate

conviction is a new "fact" that triggers a fresh one

year statute of

limitations under § 2255(f)(4), so long as the petitioner exercised due

diligence in seeking that order. 544 U.S. at 302, 125 S.Ct. at 1577.

The Court's rationale was based, in part, on its previous holdings in

Custis V. United States and Daniels v. United States, which explain

that only after an underlying conviction is successfully challenged may

a defendant seek relief in federal courts. Id. at 303-04, 125 S.Ct. at

1577-78. Having concluded that a defendant's ability to pursue federal

habeas relief was contingent upon his success at the state level, the

Court was left to determine how such a defendant was to obtain relief.

The Court ultimately decided that, because success in the state Courts

is a prerequisite for federal habeas relief, and because the facts

supporting a state court challenge "cannot by themselves be the basis

of a § 2255 claim", the vacator order itself gives rise to a mOvant's

claim. Id. at 305-07, 125 S.Ct. at 1578.80. Johnson established that

the basis for a claim challenging a sentence predicated on faulty state

Convictions arises when the order vacating those predicate convictions

issues. Id., 125 S.Ct. at 1579-80. The vacator order gives a defendant

both the basis to challenge an enhanced federal sentence and a new one

-year period in which to pursue that challenge.

Now Steele argues unlike Johnson, his claim is not based on the

complete vacator of his prior predicate state conviction, but this does

not mean that its reasoning cannot extend to his claim, which is a

fundamental defect sentence considering the extraordinary deprivation

of liberty at stake. The basis for Steele's claim

the

unconstitutional enhanced sentence under the career offender provision

(i.e. "the two prior felony drug convictions for possession with intent

to deliver controlled substance under section 481.112(a) of the Texas

Health and Safety, Code used for career offender enhancement purposes")

do not qualify as a controlled substance offense under that statute.

Because United States v. Tanksley, 848 F.3d 347, 352 (5th Cir. 2007),

now represents the law, only then did Steele's claim become "ripe" and

Steele should have an absolute right not to stand before the court as a

career offender when the law does not impose that label on him. The

intervening change in the law as to the applicability of the career

offender guidelines to Steele's improperly enhanced sentence, should

constitute a "rare" or "exceptional circumstance", that would justify

equitable tolling of the statute of limitations. Steele's case,

however, does not come within the general rule. If presents a special

and very narrow exception, a postconviction clarification in the law

has rendered the sentencing court's decision unlawful. This court's

decision in Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298

(1974), speaks to the situation here. In Davis the petitioner sought §

2255 relief after a subsequent interpretation of the statute, under

which he was convicted established that his conviction and punishment

were "for an act that the law does not make criminal". The Court

concluded that "[t)here can be no room for doubt that such a

circumstance inherently results in a complete miscarriage of justice".

Therefore, the fact remains that the two prior felony drug convictions

used to support Steele's enhanced- sentence under the career offender

provision (U.S.S.G. § 4B1.1) can no longer serve as predicates for

purpose of his enhanced sentence, which should constitute a "new

fact", because it forms the new factual basis for reversing his

sentence under § 2255. More precisely, it is now clear that Steele

never should have been classified as a career offender and never should

have been subjected to the enhanced punishment reserved for repetitive

and violent offender. The loss of his liberty as a result of his

sentencing proceeding, and what is characterizes as an erroneous career

offender enhancement, which has placed him in a specific subset of

offenders who sentences are illegal and fundamentally unfair

violating his due process of law to fair procedure, equal protection,

and liberty interest. This Court should find that Steele's situation is

similar enough to the facts of Johnson and that it is fair to conclude

that Steele's § 2255 motion is not successive, and thus should have

been considerable on its merits by the lower court(s), and this Court

should decide whether there is a "basis for enlarging the grounds for

collateral attack to include claims" like Steele's that presents a

close question.

3. Does Steele's unconstitutional and illegal designation as a

career offender which resulted in an increase in his term of

imprisonment that deprived him of liberty without due process of law,

constitute a fundamental defect resulting in a miscarriage of justice?

The term 'miscarriage of justice" comes form the U.S. Supreme

Court's holding that a non-jurisdictional, non-constitutional error of

law is not a basis for collateral attack under 28 U.S.C.S. § 2255

unless the error is a fundamental defect which inherently results in a

complete miscarriage of justice. See Davis v. United States, 417 U.S.

333, 346, 94 S.Ct. 2298 (1974) ("for example, the Supreme Court

collaterally reviewed a prisoner's conviction for conduct that was no

longer illegal. Because the prisoner was incarcerated "for an act that

the law does not make criminal", [t]here [could] be no room for doubt

that such a circumstance inherently rsulted in a complete miscarriage

of justice").

Steele argue at sentencing he was alleged to have had two prior

felony convictions for controlled substance offense, therefore,

classified him as a career offender and subject him to an enhanced

sentence under the provisions at U.S.S.G. § 481.1, and also, Steele's

mandatory minimum and maximum increased from 5 to 40 years to 10 year

to life, because he was subject to a Penalty Enhancement pursuant to 21

U.S.C. § 851, based on the same two prior felony convictions. Now based

on the fact that the § 851 enhancement, now exposed Steele to

maximum

of Life, his career offender guidelines range were affected as well and

his career offender guidelines range increased dramatically to 360

months to Life. Steele objected to these findings at sentencing and all

calculations affected thereby. The sentencing court overruled Steele's

objections finding that his two prior felony convictions qualify for

career offender purposes, and held as such by the Fifth Circuit in

United States v. Ford, 509 F.3d 714, 715 (5th Cir. 2007). Had Steele

attempted to raise his claim on direct appeal or in his initial § 2255

motion, it would have been an empty formality, with circuit precedent

against him and stare decisis would make the higher courts unwilling

(in all likelihood) to listen to him, foreclosing Steele's claim,

denying him any opportunity for judicial rectification. Steele states

that the lower court(s) failed to address the question whether the

error alleged by Steele

offender enhancement

the erroneous application of the career

meets the miscarriage of justice standard. The

Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243

(2015), supported Steele's position that his prior conviction under

Section 481.112(a) of the Texas Health and Safety Code ("Section

481.112(a)") for possession with intent to deliver a controlled

substance is a indivisible statute. In Mathis, the Supreme Court

determining if a prior conviction is for an offense enumerated or

defined by the USSG section and compares those elements to the elements

of the prior offense for which the defendant was convicted. Some

criminal statutes, however, are divisible, meaning a single statute

defines multiple crimes. The Supreme Court has approved the modified

categorical approach for use with statues having multiple alternative

elements, permitting courts to examine a limited class of documents,

for example, the indictment, jury instructions, or plea agreement and

colloquy to determine what crime, with what elements, a defendant was

convicted of. With the precise crime thus identified, a court can then

apply the categorical approach, asking whether that precise crime

matches the Guidelines offense at issue.

Some criminal statutes appear divisible but are not. Those

statutes, rather than providing alternative elements, instead list

various factual means of committing a single element. In the Mathis

decision, the Supreme Court. held that the modified categorical approach

is nd-4 appropriate for that species of criminal statute. Most

importantly, it also provides helpful guidance for determining whether

a :oredicate statute of conviction is divisible.

In light of Mathis v. United States, 136 S.Ct. 2243 (2016), and

United States V. Hinkle, 832 F.3d 569 (5th Cir. 2016), the Fifth

Circuit Court of Appeals, granted a motion for panel rehearing in

United States v. Tanksley, 848 F.3d 347, 352 (5th Cir. 2017), to

decide whether United States v. Ford, 509 F.3d 714 (5th Cir. 2007),

still represents the law. Ford held that a conviction for possession

with intent to deliver a controlled substance under section 481.112(a)

of the Texas Health and Safety Code ("Section 481.112(a)") qualifies

as a "controlled substance offense" under the United States Sentencing

Commission Guidelines Manual (the "Guidelines"). The court in T.anksley

held that Ford could not stand. Section 481.112(a) is an indivisible

statute to which the modified categorical approach does not apply.

Because the modified categorical approach is inappropriate in this

case, we cannot use it to "narrow" Tanksley's conviction to

"possession with intent to deliver" a controlled substance. We instead

look to Section 481.112(a) as a whole in determining whether his

conviction thereunder qualifies as a controlled substance offense

under the Guidelines. Section 481.112(a) "criminalizes a greater swath

of conduct than the elements of the relevant [Guideline] offense". Hinkle,

832 E'.3d at 576 (quoting Mathis, 136 S.Ct. at 2251). Tanksley's conviction

under that statute does not qualify as a controlled substance offense under

the Guidelines. Now based on the intervening change in the law established

by Mathis and Tanksley, Steele's unconstitutional enhanced sentence

constitute a fundamental defect which inherently resulted in a complete

miscarriage of justice. A postconviction clarification in the law arguably

rendered the sentencing court's previous decision upholding Steel's

sentence "demonstrably wrong", and produce an unwarranted disparity between

Steele and similarly situated defendants in other cases. It is now clear

that Steele never should have been classified as a career offender or

subject to a penalty enhanced pursuant to 21 U.S.C. § 851 and he never

should have been subject to the enhanced punishments reserved for such

repetitive and violent offenders. Steele was sentenced based upon the

equivalent of a nonexistent

offense, his sentence is based on conduct

"the law does not make criminal". Steele points to an "objectively

ascertainable [legal] error", and one that is of a "fundamental character",

that error being the unconstitutional and prejudicial career offender

enhancement and § 851 enhancement used. to enhance his sentence in violation

of the Constitution or laws of the United States. The increase in Steele's

mandatory minimum and maximum from 5 to 40 to 10 to life and the 360 months

sentence imposed on him as a result of this grave error. is an error

sufficiently grave to be deemed a fundamental defect. Without the two prior

felony drug conviction predicates Steele statutory minimum and maximum

would not have "doubled and nor would he have received a sentence of 360

months, more than three times the sentence he may have receive.

Tanksley now represents the law, Steele should have an absolute right

not to stand before the courts as a career offender when the law does not

impose that label on him. And to do so, amounts to complete deprivation of

freedom by virtue of a longer than

deserved prison sentence.

Therefore, the fact remains that Steele's two prior felony convictions

used to support his enhanced sentence under the career offender provision

(U.S.S.G. § 4B1.1) and 21 U.S.C. § 851, can no longer serve as predicates

for the purpose of Steele's enhanced sentence. Today Steele has served

about 126 months of his 360 months sentence. However, had Steele been

sentence without the career offender and

851 enhancement, he mostly

likely would have received a guideline range at about 110-137 months, a

significantly less harsh guideline range and, his statutory minimum and

maximum would not have change. The loss of Steels liberty as a result of

his sentencing proceeding, and what is characterizes as an erroneous career

offender enhancement has placed him in a specific subject of offenders who

sentences are illegal and fundamentally unfair

...

violating his due

process rights under the Fifth Amendment to fair procedure, equal

protection, and liberty interest.

4. Did the lower court(s) err by denying Steele a "COA", when he

raised a constitutional right to be deprived of liberty as punishment for

criminal conduct only to the extent authorized by Congress, and a

constitutional right to be treated on equal term as, other similarly

situated defendants in other case, and jurists of reason would have found

it debatable whether he stated a valid claim of a constitutional right?

One of the requirements for obtaining a certificate of appealability

is that an applicant must make "a substantial showing of the denial of a

constitutional right". 28 U.S.C. § 2253(c)(2). The Supreme Court has

explained that, in this context, a substantial showing requires "a

demonstration that

...

reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further". Slack v. McDaniel, 529 U.S. 473, 48384, 120 S.Ct. 1595 (2000). But in this case, the lower court(s) denied

Steele a COA by finding that is, he has not made the requisite showing

"jurists of reason would find it debatable whether the petition states • a

valid claim of the denial of a constitutional right, and that jurist of

reason would find it debatable whether the district court was correct in

its procedural ruling".

In Steele's "COA", he clearly sets ou't the facts surrounding his claim

that the basis for his claim

a career offender

the unconstitutionally enhanced sentence

did not exist before his initial 28 U.S.C. § 2255

petition concluded, and his numerically second pe'tition was not "second or

successive"; and the § 2255(h)'s gatekeeing provision did n0t apply as the

failure to seek the requisite permission is not fatal to his claim when the

district court had jurisdiction to consider Steele's claim.

Mindful of the "implications for habeas practice," the purpose of

AEDPP,, and its prior habeas decisions

of-the-writ doctrine

including those applying the abuse-

the Supreme Court determined "that Congress did not

intend the provisions of AEDPA addressing "second or successive" petitions

to govern a filing in the unusual posture. Under that rule, to determine

whether an application is "second or successive", a court must look to the

substance of the claim the application raises and decide whether the

petitioner had a full and fair opportunity to raise the claim in the prior

application. Panetti 551 U.S., at 947.

The lower court(s) should have limited themselves

the threshold

question whether the merits were debatable. A court may grant a COA even if

it might ultimately, conclude that the underlying claims is meritless, so

long as the claim is debatable. Miller-El, supra, at 396, 123 S.Ct. 1029

(2003).

In this case, Steele's certificate of appealability raises a claim

that he was illegally designated as a career offender resulting in an

increase in his term of imprisonment that deprived him of liberty without

due process law. The sentencing court designated Steele as a career

offender based on two prior felony drug convictions, under Texas Health and

Safety Code section 481.112(a), possession with intent to deliver a

controlled substance offense. Steele was also subject to a § 851

enhancement based on the exact two prior felony drug convictions. The § 851

enhancement change Steele's statutory minimum and maximum from 5 to 40 years

to 10 to Life. This enhancement alone increased Steele's then mandatory

minimum and maximum sentencing range. But since Steele's mandatory maximum

now exposed him to life, this now affected his career offender status which

6101

increased Steele's sentencing range to 360 to life. The sentencing court

sentenced him to 360 months imprisonment. Had Steele not been subject to

either enhancement he most likely would have received a guideline range at

about 110 to 137 months. Steele's claim presents a special and very narrow

exception. A postconviction clarification in the law has rendered the

sentencing court's decision unlawful. Steele's claim did not exist and only

became ripe with the Supreme Court's recent decision in Mathis v. United

States, 136 S.--t. 2243 (2017), and. the Fifth Circuit intervening charge in

controlling law in United States v. Tanksley, his two prior felony drug

convictions for possession with intent to deliver controlled substance

under section 481.112(a) of the Texas Health and Safety Code do not qualify

as "controlled substance offense" within the meaning of the career offender

guidelines. More precisely, it is now clear that Steele never should have

been classified as a career offender, nor should he have been subject to a

§ 851 enhancement and never should have been subject to the enhanced

punishment reserved for such repetitive and violeçit offenders. With the

imposition of the "drug felony" status under the § 851, Steele faced, at a

minimum, ten years of imprisonment that the law otherwise could not impose

upon him under his statute of conviction and because his statutory maximum

was increased to life, his career offender guidelines increased as well as

results to 360 to life, because Steele was now exposed to life and not 40

years. Such an increase in punishment is certainly a substantive liability.

Therefore career offender status and § 851 enhancement illegally increased

Steele sentence approximately 25 years beyond that authorized by the

sentencing scheme. Steele was sentenced based upon the equivalent of •a non

existent offense and he does have an absolute right not to stand before the

court as a career offender or § 851 when the law does not impose that label

on him. This Court should find the foregoing errors affected Steele's

substantial rights because there is a reasonable probability those errors

impacted his unconstitutionally enhanced sentence, violating his due

process rights to liberty and surely a reasonable jurist would find it

debatable or wrong whether Steele stated a valid claim of the denial of a

constitutional right. And that jurist of reason would find it debatable

that the lower court(s) where wrong in its procedural ruling.

Theref ore Steele has clearly established that the lower court(s) failed

to follow well

established law by overlooking or misapprehending points

of law and facts presented by him, nor did the lower court(s) state with

any specification a rule the court's were hounded by or precedent's that

precluded any consideration of Steele's claim on the merits. And it should

be determine that Steele is entitled to postconviction relief as a legal

matter or whether there is a "basis for enlarging the grounds for

collateral attack to include claims" like Steele's, when the facts indicate

that a oarticula:r result is completely unjust. Finality is an important

Principle of vital importance to our system of justice, but "without

justice", finality is nothing more than a bureaucratic achievement.

CONCLUSION

Wherefore, Steele requests that certiorari be granted and the case be

remanded to the court below to issue a COA on his claims presented to allow

him to appeal the lower court(s) judgement or any other relief this Court

deems just. For all of the reasons stated herein Steele's Petition for Writ

of Certiorari should be granted.

Respectful ly ç S 4bm t ted

JIJY STIELE, PRO SE

#369B9-177

FMC Fort Worth

P.O. Box 15330

Fort Worth, Tx, 76119

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a copy of the above and foregoing Writ of

Certiorari was mailed out the

day

2018, to the Solicitor

General of the United States, Department of Justice, Room 5614, 950

Pennsylvania Ave, NW., Washington, DC 20530 and the United States Supreme

Court, 1 First Street, N.E. Washington, DC20543.

Re,pectfuly

uJed

JI&MY SIEELE, PRO SE

#36989-177

FMC Fort Worth

P.O. Box 15330

Fort Worth, Tx, 76119

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.